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Types of Lawyers #17: The Associate Who Finally Gets a Chance to Meet the Senior Partner

You knew him only as “the senior partner,” so you were honored, but also a little nervous, when you were asked to accompany him to a client’s deposition. You were surprised to have been asked so soon. After all, you’d only been at the firm for three months, and everything you knew about depositions you’d read in books.

You knew the senior partner would be “defending” the deposition—that is, not asking the questions himself, but objecting when the other lawyer asked his questions. From reading books, you knew that before depositions, lawyers are supposed to “woodshed” their clients by telling them what and what not to say. The very good lawyers never did this explicitly, of course, both to avoid problems of ethics and of poor form. Instead, the good lawyers cloaked their woodshedding in a haze of ambiguity.

When you showed up for the pre-deposition meeting a little early, it was the woodshedding that you were thinking about. While waiting for the senior partner to arrive, you engaged in some uncomfortable small talk with the client about baseball and TV.

Finally, the senior partner arrived. The woodshedding was not exactly what you’d expected. It took precisely five seconds and went something like this: “Sorry I’m late. You’re going to do fine. Let’s go.”

Three years of legal education, and it’s clear that you don’t know the first thing about practicing law! You make a quick note about proper pre-meeting technique and sit down at the deposition in a corner of the room, where you wait for the senior partner to display the qualities that made him great.

And that’s when you get a big surprise. As the deposition begins, you see the senior partner pull something out of his briefcase—not documents you recognize from the case, not pleadings or discovery answers but . . . a stack of bills! After that, the senior partner produces a checkbook and begins . . . paying his bills!

What about the lawyering? What about the objecting? The senior partner doesn’t make any objections. In fact, he looks up from his bills only once, to tell the deponent—your firm’s client—to “answer the counsel’s question. Please.”

It’s quite a shock. Quite a shock indeed.

[Like this post? It's one of many included in my book How to Feed a Lawyer (And Other Irreverent Oberservations from the Legal Underground). Details here.]

I absolutely hate the term "defending a deposition." In my experience it's mostly used by litigators, not trial lawyers. (Litigators don't go to trial, so they don't have anything else to "defend" except depositions, motion hearings, etc.)

But I disagree that woodshedding is useless. There's a big difference between improper and unethical practice  telling a witness what to say  and proper woodshedding. Proper woodshedding involves giving the witness (a) an understanding of the process and (b) tools to recognize and deal with traps he may be subjected to. Depending on the case, the witness, and the opponent, woodshedding can be crucially important.

Beldar: In my experience, many lawyers don't properly prepare--or woodshed--their clients before a deposition. It's something I certainly don't complain about, especially when I'm taking the deposition. But it's something some of my lawyer friends and I talk about a lot: Why is it that so few lawyers bother to prepare their clients properly? Perhaps it's because they don't care, or because they don't know how, or because they think it's unethical. But in the defense firm where I used to work defending admirality cases (among other things), proper deposition preparation was something the partners always emphasized over and over again. And for good reason: in admirality case, the company witnesses were often uncooperative barge workers who were prone to say whatever nonsense popped into their minds. It meant that the preparation for the deposition often took twice as long as the deposition itself.

I still engage in deposition-preparation-overkill, even with experts. It's something I've been meaning to write about on the Illinois Trial Practice Weblog, but haven't gotten around to yet.